December 19, 2013

The Redemption of Edward Snowden: Court Denounces NSA Phone Collection Program as “Almost-Orwellian” and Likely Unconstitutional

HackersBy Gordon Schnell

It is the first ruling by a court on the constitutionality of the NSA’s bulk collection of phone data disclosed by Edward Snowden.  Not one of those secret, slanted FISA courts created under the Foreign Service Intelligence Act.  But the good old-fashioned kind of court subject to the regular rules of transparency and accountability that make our judicial system one of the best in the world.  It did not go well for the government.  It went very well for Mr. Snowden.

In short, DC District Court Judge Richard Leon ruled this week in Klayman v. Obama, that there is a “substantial likelihood” the challenged phone surveillance program violates the Fourth Amendment.  It likely does so, he found, as an unreasonable search and seizure that intrudes on our expectation of privacy.  It is not the judge’s final decision on the matter.  It deals only with the plaintiffs’ request for a preliminary injunction.  However, it certainly is a strong indication of where the judge will ultimately come out on the question.

Indeed, Judge Leon did not mince words, or dramatic flair, in his denouncement of the secret collection program.  He could not imagine a more “indiscriminate” and “arbitrary invasion” of our privacy, “almost-Orwellian” he called it.  So horrific there is “little doubt” that James Madison, author of our Constitution, “would be aghast.”  Obviously, this is not a very close call for Judge Leon.  Here is the basic roadmap of how he got there.

First, Judge Leon got past the threshold issue of whether he even has the authority to evaluate a constitutional challenge to a program conducted pursuant to orders issued by the FISA court.  He did so by finding that FISA does not have any language that explicitly bars this kind of judicial review.  The judge may also have been swayed by the government’s “systematic noncompliance” with the FISA orders, not to mention its repeated “misrepresentations and inaccurate statements” to the FISA judges about the challenged surveillance program.

Second, Judge Leon readily disposed of the government’s contention that the plaintiffs here—subscribers of Verizon Wireless—do not have standing to even bring their constitutional challenge.  He found this argument so lacking in candor it “defies common sense.”  To the judge, the government’s suggestion that its program excluded the main wireless carriers in the country was like arguing that John, Paul and George would be excluded from a historical analysis of the Beatles.

Third, Judge Leon outright rejected as “of little value” the 1979 landmark Supreme Court warrantless search decision, Smith v. Maryland, on which the government so heavily relies.  Not only was the secret surveillance program at issue there significantly less intrusive than the NSA phone program.  It took place during a time when people had a dramatically different relationship with their phones:

This rapid and monumental shift towards a cell phone-centric culture means that the metadata from each person’s phone reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.  . . .  Records that once would have revealed a few scattered tiles of information about a person now reveal an entire mosaic.  . . .  I cannot possibly navigate these unchartered Fourth Amendment waters using as my North Star a case that predates the rise of cell phones.

Fourth, Judge Leon found that these “cultural changes” in our phone usage and what that usage can reveal to the government about the details of our lives has vastly increased our expectation of privacy over this information.  He further found that reasonable expectation “significantly likely” to be violated by the NSA program where the government “without any basis whatsoever to suspect [] wrongdoing, collects and stores for five years [our] telephony metadata . . . without any case-by-case judicial approval.”  The judge also rejected any suggestion that this expectation has been “conditioned” away because of the ever more aggressive surveillance tactics the government has employed in this post-Patriot Act age.  It would be no different, he quipped, than the tainted expectation of a “refugee from a totalitarian country, unaware of this Nation’s [constitutional] traditions.”

Fifth, Judge Leon found the government failed to show the NSA phone collection program actually served the significant public interest put forward by the government of rapidly identifying terrorists in time-sensitive investigations.  There was an “utter lack of evidence that a terrorist attack has been prevented because searching the NSA database was faster than other investigative tactics.”  As to the government’s public assertions that the NSA surveillance programs have prevented 54 terrorist attacks, the judge said that “no proof of that has been put before me.”  He thus found meritless at this point in the proceedings the government’s assertion that people’s privacy interests are outweighed by the government’s interest in using the NSA program to combat terrorism.

As firm as he was in condemning the NSA program, and as outraged as he was in what he clearly sees as the government’s unabashed constitutional trampling, Judge Leon stayed his decision pending appellate court review.  He did so because of the “significant national security interests at stake in this case and the novelty of the constitutional issues.”  It is anyone’s guess where the circuit court will come out on this and, even then, it will not be the last word on the subject.  Similar challenges are pending in other courts across the country, one brought by the American Civil Liberties Union, which will surely wind their way up the judicial ladder.

It ultimately will be for the Supreme Court to decide whether the government has overstepped its bounds here in the name of national security.  Whatever ultimately happens on the legal front, with yesterday’s recommendations to drastically overhaul the NSA surveillance system—by a panel of outside experts President Obama appointed himself—it seems pretty clear the government is going to have to rein it in with its surveillance practices.  So wherever he is hiding out these days, Edward Snowden must be feeling quite redeemed in his efforts to expose what he, and now at least one federal judge (not to mention a panel of independent intelligence experts), believe to be a government behaving very badly.

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